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Judgment
50 paragraphs · 2,412 wordsVinod K. Sharma, J.—The Petitioner has invoked the writ jurisdiction of this Court with a prayer for issuance of a Writ in the nature of Certiorari, to quash the impugned order of punishment of Censure passed by the third Respondent.
The admitted facts are:
That the Petitioner was charged on the following charge:-
That CISF No. 023220056 SI/Exe Satish Kumar Yadav (STF Wing) of CISF Unit, KKNPP Kudankulam, Tirunelveli (TN) was detailed for "C" shift duty on 25.05.2005, but he left the unit line without permission of the competent authority, when red alert was prevailed in the unit. The act on his part is tantamount to gross indiscipline, misconduct and unbecoming of a member of the Armed Force of the Union like CISF. Hence the charge.
As per Rule 37 of the Central Industrial Security Force Rules, 2001 (hereinafter referred to as the Rules), the Petitioner was issued a show cause notice. The Petitioner submitted a detailed reply.
The defence taken by the Petitioner was that he was suffering from stomach pain for the last one year. The factum of illness was known to the Department. The reason for his absence on 25.05.2005 was that he was to go for medical check up. The Petitioner also submitted all the medical treatment documents.
After considering the reply, the Petitioner was imposed the punishment of seven days pay fine, the order of punishment reads as under:
"Government of India Office of the Dy. Commandant Central Industrial Security Force (Ministry of Home Affairs)
CISF Unit, KKNPP Kudankulam Post: Kudankulam 627 106 District: Tirunelveli (T N )
No. V-15014/37/28/KKNPP/DISC/2005 - 2371
Dated: 07th August 2005
FINAL ORDER
No.023220056 SI / Exe. Satish Kumar (STF Wing) of CISF Unit KKNPP Kudankulam was served with a charge memorandum under Rule 37 of CISF Rule 2001 vide letter No. V-15014/37/28/KKNPP/DISC/2005 -2182 dated 12/13.07.2005 for the following charge:
That CISF No. 023220056 SI/Exe Satish Kumar Yadav (STF Wing) of CISF Unit, KKNPP Kudankulam, Tirunelveli (TN) was detailed for "C" shift duty on 25.05.2005, but he left the unit line without permission of the competent authority, when red alert was prevailed in the unit. The act on his part is tantamount to gross indiscipline, misconduct and unbecoming of a member of the Armed Force of the Union like CISF. Hence the charge.
The charged member submitted his reply on 19.07.2005 which was received in this office on 20.07.2005 wherein he stated that he was suffering from severe stomach pain from last one year and it was known to the department. He further stated for the absence from duty on 25.05.2005, he replied the reason already on 28.05.2005 to the show cause notice vide V-15014/KKNPP/DISC/MISC/2005-1630 dated 28.05.2005 and he replied in the PE Statement about his health conduction and absence from duty in the PE held from 10.06.2005 to 16.06.2005 and also submitted all medical treatment documents for the last one year. He already submitted medicinal unfit and fitness certificate, he did not want to say any thing more in this regard and he did not like to disclose what happened in the past.
The charge memorandum issued against him is totally false. He stated that the explanation given by him was not considered. Nowhere the statement given by him in the P.E was discussed. If only the reply to the memorandum is to be considered then why Charge Sheet was not issued in the month of June, 2005. Most important is on 04.06.2005 he was issued DE / Vigilance Certificate wherein it was written that DE/Vigilance case was either pending or contemplated and punishment is Nil. Reading upon this letter he felt that this was an act of giving trouble to him. He requested to render justice in this case.
I have carefully gone through the reply submitted by the charged member and documents held on record. The plea he took for unauthorized absence from barrack and duty is that he was to go for medical re check up at Tirunelveli where he had undergone medical treatment from 30.04.2005 to 03.05.2005 and out pass which he applied for this purpose was not granted. This is not acceptable to any extent. As per his statement, he was to go for review after 15 days from the date of discharge from the hospital. From the records it is clear that, he was discharged from hospital on 03.05.2005. It means he had to go for medical review after 18.05.2005. From 20.05.2005, he was granted leave with a permission to avail 22.05.2005 being Sunday and 23.05.2005 being G.H. Had he been interested in his health, he would have undergone medical re checkup during his leave period. He didn''t do so. After joining from leave, he applied for out pass which could not be sanctioned due to prevailing red alert from 22.05.2005 to 02.06.2005. In this regard, he was advised to proceed on out pass after two or three days. He did not heed to advice given by the competent Authority. He only said that when he approached medical officer and told him that his out pass was not sanctioned, he was given unfitness certificate for a period of 3 days. After obtaining certificate he made a G D entry and left for Tirunelveli without obtaining permission which is required as per the order prevalent in the unit. Next day on his own, he produced medical fitness and submitted an application for taking him on duty. From the above, it is very clear that he had no immediate problem as far his health is concerned. He was neither admitted in the hospital nor continued on medical rest given for 03 days. He could have waited till he gets permission as situation was not warranted for to leave station without permission and that too during the period of red alert. It is a fact that when DE / Vigilance Certificate was issued to him, there was no case pending / contemplated against him as a report of preliminary enquiry into the matter was received in this office only after issue of such certificate i.e. 25/06/05. If the department had any intention of troubling him, such certificate would not have been issued to him. This clearly shows that the department did not have any intention to trouble him as he claimed. All above clearly reflects indiscipline on his part and he disobeyed the order of the unit and left the station without seeking permission. Hence charge levelled against him is proved.
Though over staying leave is a grave misconduct in the force like CISF, taking his past record into account, I, IN EXERCISE OF POWER CONFERRED UPON BY RULE 32 READ WITH SCHEDULE -I OF CISF RULES -2001 IMPOSE THE PENALTY OF 07 (SEVEN) DAYS PAY FINE on No. 023220056 SI / Exe Satish Kumar of CISF Unit, KKNPP Kudankulam.
No. 023220056 SI / Exe Satish Kumar may prefer an Appeal against this order before the Appellate Authority i.e., Commandant, CISF Unit, DAE Kalpakkam, if he so desires, within 30 days of the receipt of this order.
No. 023220056 SI / Exe Satish Kumar is provided a true copy of this order free of cost. He is also directed to acknowledge the receipt of this order".
The Appellate Authority confirmed the order.
The Petitioner preferred a Revision, which was partly accepted. The Revisional Authority passed the impugned order, the operative portion of the order reads as under:
I, the undersigned has very minutely gone through each and single documents held in the case file. The Petitioner was diagnosed as a patient of IBS (Irritable Bowel Syndrome) and was referred to SSH, Tirunelveli for management and follow up on 23.05.2005 vide reference slip No. KKNPP/Dispensary/683 dated 23.05.2005 and the slip was valid from 23.05.2005 to 30.05.2005. He left the unit at his own at 14.30 hrs on 25.05.2005 after making GD entry at Unit Quarter Guard and returned back on 26.05.2005 at 09.30 hrs as per the GD entry No. 385 dated 26.05.2005 for which no permission was obtained. This has been proved documentarily as well as there is no denial to this fact from the Petitioner''s end. The Petitioner obtained 03 days sick rest so as to facilitate him to have medical check up from 25.05.2005 and applied for permission to go to Tirunelveli. But he left without having been permitted. The Petitioner''s plea that 25.05.2005 was fixed for check up and follow up at Tirunelveli hospital has not been substantiated. The Petitioner''s perturbed state of mind owing to sickness can be well understood but a little patience could have avoided himself from the ordeal he has undergone. Though the charge against him has been well established without lease iota of doubt and the penalty imposed upon him by the disciplinary authority and upheld by the appellate authority is also not disproportionate as far as the offence is concerned. However, considering the anxiety over ill health and mental agony he is in due to ailment, I am constrained to extend some respite to the Petitioner purely on humanitarian grounds and reduce the penalty of pay fine to the extent of 07 days pay awarded to him by disciplinary authority and upheld by the appellate authority to that of "CENSURE". The revision petition submitted by the above said petition is disposed of with the above modification.
The learned Counsel for the Petitioner challenged the impugned order on the ground, that the procedure adopted while imposing the punishment was not as per the Statutory Rules.
The contention of the learned Counsel for the Petitioner is that under Rule 37 of the Rules, before imposing punishment, it is incumbent upon the Respondent to have conducted an enquiry, or in the alternative a positive finding was required to be recorded, as to whether the enquiry was to be conducted or not, and it was only thereafter, the departmental action could be taken. In this case, no finding was recorded, and the punishment was imposed without holding departmental enquiry.
The contention of the learned Counsel for the Petitioner deserves to be rejected.
Rule 37 of the Rules reads as under:
Procedure for imposing minor penalties:
(1) No order imposing any of minor penalties specified in Rule 34 shall be made except after -
(a) informing the enrolled member in writing of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he wishes to make against the proposal;
(b) holding an enquiry, if the disciplinary authority so desires, in the manner laid down in sub-rules (3) to (22) of Rule 36;
(c) taking the representation, if any, submitted by the enrolled member under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration; and
(d) recording the findings on each imputation of misconduct or misbehaviour.
(2) Notwithstanding anything contained in Clause (b) of Sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under Clause (a) of that sub-rule to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period an inquiry shall be held in 10 the manner laid down in sub-rules (3) to (22) of Rule 36 before making any order imposing on the enrolled member of the Force any such penalty.
(3) The records of the proceedings in such cases shall include -
(i) a copy of the intimation to the enrolled member so charged of the proposal to take action against him;
(ii) a copy of the statement of imputation of misconduct or misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the enquiry, if any;
(v) the findings on each imputation of misconduct or misbehaviour; and (vi) the orders on the case together with the reasons therefor.
A reading of the Rule shows, that for imposing minor penalty, it is for the disciplinary authority to hold an enquiry or not. It is also open to the disciplinary authority to consider the explanation submitted to the charge and if not found satisfactory impose minor punishment.
It is only when the punishment to be imposed is withholding of increment of pay, and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or the increments of pay is withheld for a period exceeding three years or with cumulative effect for any period, that it is mandatory to hold an enquiry.
The case of the Petitioner does not all in this category.
Nothing can be read in Rule 37 of the Rules as contended by the learned Counsel for the Petitioner, that a positive finding is to be recorded as to whether enquiry is to be held or not.
The next contention of the learned Counsel for the Petitioner is that the reading of the order of the Revisional authority shows, that a positive finding was recorded, that the Petitioner was not in good mental state of health. In view of this finding, the Petitioner was entitled to acquittal of the charge, and therefore should have been exonerated. In view of the finding, referred to above, the punishment of Censure, could not be imposed.
This contention, again cannot be accepted. The operative part of the order passed by the Revisional Authority shows, that the positive finding was recorded that the Petitioner was guilty of charge framed against him.
The charge is not disputed by the Petitioner, as it is admitted that Petitioner left the unit without out pass. He only explained the circumstances, under which left the unit, in spite of refusal by the competent authority. The explanation was found to be unsatisfactory, as the Petitioner is a member of disciplined force.
The Revisional authority has dealt with the Petitioner leniently, and imposed the punishment of Censure.
No ground is made out to interfere with the order of the Revisional authority, specially when the lenient punishment of "Censure" is imposed, which does not bar further promotion, nor it is likely to adversely affect the career of the Petitioner.
No merit. Dismissed. No costs.